Henderson vs. City of Pittsburgh. Municipal improvements—Just compensation-Rental value -Evidence. In an appeal from the Board of Viewers in assessing the damages and benefits for a street improvement, it is proper for the Court to define the words "Just Compensation" as a just comparison of the advantages and disadvantages of the construction of the highway, the net damages after considering the damages and the special benefits. In a municipal improvement case, a witness who is incompetent to testify as to the market value of property cannot as a distinct fact without reference to other testimony, testify as to the rental value of the property during the last ten years. In re motion ex parte plaintiff for a new trial. Appeal from report of viewers at No. 202 April Term, 1913, Docket B. No. 505 October Term, 1913. Docket A. C. P. Allegheny County. Lee C. Beatty, for plaintiff. Harold M. Irons, Assistant City Solicitor, for defendant. BROWN, J., December 28, 1914.-The grade of Second Avenue was changed by ordinance of the City of Pittsburgh, of May 31, 1911; and the grading, paving and curbing authorized by ordinance of March 22, 1912. The improvement was begun May 6, 1912, and completed the same year. Subsequently viewers were appointed to assess damages and special benefits, caused by the improvement. Later the viewers filed a report, and from their decision an appeal was taken by the City and a jury trial demanded. This appeal came on for trial, resulting in a verdict for plaintiff in the sum of $4,025.00. The jury, preceding the taking of testimony, visited and viewed the property. The following is a brief summary of the reasons assigned by plaintiff for a new trial: 1. There was no legal evidence for the jury of special benefits peculiar to his property. 2. The Court in charging the jury erred in defining and illustrating "just compensation." 3. The Court erred in refusing to permit Mr. Gill (plaintiff) to testify to the rental value of the property for a period of ten years preceding the change of grade. 4. The verdict was against the weight of the evidence. These reasons will be discussed in the order named: 1. There was ample evidence of special benefits to be measured by the jury and set off against damages occasioned by the improvement. In the charge to the jury we said: "Witnesses for the City *** say that the special benefit or increased value given the property by the change of grade results from the improved highway eliminating the danger and congestion formerly arising from the old grade crossing over the Panhandle Railroad, and giving a safer and better outlet to connecting streets in the downtown district; and for that reason making the property more desirable for business or other purposes than it formerly was; that the net damage to the market value, including the loss of the building, does not exceed three to four thousand dollars. They admit that the cost of cutting the lot to the new grade will be considerable, but that such cost is substantially gained in the increased value that the property will have at the new grade. If that be true, such measure of gain and value should be allowed as a credit against the resulting damages-thus leaving a net damage to be given Mr. Gill by your verdict. The City does not contend that the property was not damaged in excess of three or four thousand dollars; but it does contend that the improved avenue is a thing of special value to the property-of value to such an extent Henderson vs. City of Pittsburgh. that it has largely reduced the total damages-reduced them to a net damage not exceeding three to four thousand dollars. Witnesses for Mr. Gill take a different view. They assert that the damages to the property are larger than the estimates given by the City's witnesses. They also testify that the old street crossing over the railroad was not a detriment or inconvenience or subject to conjestion to the extent claimed by the City, and that the new street grade has not increased the market value of the property nor improved the highway for traffic and other uses. Comparing the advantages given by the new highway and the disadvantages arising from the change of grade, what does the weight of the testimony establish. If it satisfies you that the City's contention is true, that the net damage to the market value of the property does not exceed three to four thousand dollars, that would be the measure of the verdict in Mr. Gill's favor. If the weight of the testimony satisfies you that Mr. Gill's contention is true-namely, that the market value of the property has been damaged in excess of the special improved value in a sum considerably larger than that fixed by the City's witnesses, that would be the measure of the verdict in Mr. Gill's favor. If the weight of the testimony satisfies you that the City's estimate of the net damage is too low and Mr. Gill's estimate too high, then whatever reasonable estimate seems just to you, will be the net measure of the damages to be awarded Mr. Gill." 2. "Just Compensation" was properly defined and illustrated in the charge to the jury: "The Constitution of our State provides that just compensation shall be mnade for property taken, injured or destroyed by municipalities in the construction of highways. Just compensation means a just comparison of the advantages and disadvantages resulting from the construction of such highways. Comparing the advantages and disadvantages, an owner cannot recover damages unless they exceed the special benefits; and then only to the amount of the damages in excess of the special benefits. Compensation for damages may be paid wholly or partly by the special increased value given the property by the improvement-wholly by special benefits if they equal the damages; partly by special benefits if they are less than the damages. By way of illustration: The increased value given to a property by change in the highway is three thousand dollars and the damages by changing the grade six thousand dollars. The difference between the $3,000 special benefits (the increased value given by the improvement) and the $6,000 damages caused by the change in grade, is $3,000; and that is the net damage and the measure of the owner's compensation." In Pusey's Appeal, 83 Pa. 67 (followed in Tourison's Appeal, 171 Pa. 44, and Beechwood Avenue Sewer Cases, 179 Pa. 497) the Court said: "Again it is said the Constitution provides only for a trial of the damages and not of the benefits. This overlooks the inquiry which the Act of April, 1870, institutes in order to ascertain the damages. They, the viewers, shall make a true and conscionable appraisement of the damages, taking into consideration the probable advantages and benefits which any owner or owners will be likely to sustain by reason of the proposed improvement. The damages, therefore, are the subject of the issue, but the legal mode of ascertaining them is by a comparison of the advantages and disadvantages. In deed, in most cases damages are the result obtained by a comparison of the injury and benefit accruing to the party. A familiar analogy is that of railroad damages." In Pittsburgh & Lake Erie Railroad Company vs. Robinson, 95 Pa. 426, the Court said: "It hence follows that while the general advantage resulting to the public as to the property which is the subject of assessment, is not to be Henderson vs. City of Pittsburgh. considered in estimating the benefits to that property, yet any and everything connected with the general improvement which tends to increase its value of usefulness to such property, may be considered." Following the definition and illustration of just compensation we said to the jury: "How are you to determine the question of damages and special benehits resulting from the change of grade? You are to determine the question by the difference between the fair market value of the property before the change in grade and the fair market value after, as affected by the improvement." The definition and illustration of just compensation was not at variance but in harmony with the measure of damages and of special benefits to be ascertained by the general rule of market value before the improvement and after as affected by it. "Advantages" and "disadvantages," "damages" and "special benefits" touch the debit and credit sides of the account in the adjustment of the owner's as well as the municipality's rights. In reaching a verdict (by the difference between the market value before the improvement and after, as affected by it) the jury strikes a balance between the damages (decreased value to the property) and the special benefits (increased value to the property)-the difference, excess in damages, as shown by the balance being the measure of the owner's compensation. Whether the property was-or was not-specially benefited by the improvement was a disputed issue of fact for the jury, to be settled by the weight of the testimony to be measured-as we said to the jury: "by the manner and appearance of witnesses on the stand; by their bias and interest in the subject matter of the controversy; by their knowledge and experience touching the matter, by the consistency and inconsistency. variation and contradiction in the stories told by them; and by other surrounding circumstances giving it an atmosphere weak or strong, true or false. Some testimony may be as good as gold, as genuine as a standard coin; and some as worthless as a counterfeit. Testimony may bear the impress of truth, or the badge of fraud and perjury. Testimony, like the quality of things bought and sold in the market, or like the reputation and character of individuals, may be good, bad or indifferent.” The credibility of testimony-all oral-must be weighed by the jury; Reel vs. Elder, 62 Pa. 308; Duffy vs. York Haven Water & Power Co., 233 Pa. at p. 110. Credibility is the touchstone of testimony in the measure of its weight. The weight of testimony is that which the jury determines after carefully considering the various elements necessarily entering into its makeup. Who is to pass upon its value? The jury alone. The Court cannot invade the province of the jury. The Court's supervisory control rests in the discretionary power to grant new trials. 3. No error was committed in refusing to permit Mr. Gill (plaintiff) to testify to the rents received by him from the property over a period of ten years preceding the change of grade-the property consisting of a twostory brick dwelling (torn down after the change of grade.) The offer of proof was a flat offer to prove the rent for that period. It was not offered in connection with any proposal to prove-by competent witnesses to follow-that it had any bearing on the market value of the property. Gill himself was an incompetent witness as to market value. He did not live in the vicinity. His knowledge of value was the price he paid for his property. He did not know of sales of vicinity property-nor of prices at which property generally in the neighborhood was held-either before or after the improvement. Being incompetent to express an opinion as to market value, his flat offer of proof as to rent was inadmissable. Suppose as against the testimony of expert witnesses for the City, as to market value-Mr. Gill had been the only witness for himself. In that aspect, being incompetent to Henderson vs. City of Pittsburgh. express market value, he would have had no testimony at all as to that. The rent alone as a measure of market value was inadmissible. To hold otherwise would be sweeping aside the well settled measure of market value based on the opinions of competent witnesses. 4. We cannot say that the verdict was against the weight of the evidence. True, the verdict might have been larger; true, also, it might have been smaller. The proper amount was an issue of fact for the jury. Believing in the light of all the circumstances-that a fair trial was had, and substantial justice reached by the verdict, a new trial is refused. Gulick's Estate. Decedents' estates-Expenses of litigation-Preferred claim. Where litigation is commenced by one who subsequently dies and the suits are continued by his administrator in good faith, the expenses of the litigation are an expense of administration and therefore a preference on the funds of the estate. These expenses will include charges of a referee, fixed and apportioned by the Court, and Counsel fees. Such expenses are not a charge on real estate, not affected by the litigation as against liens of record against the real estate. Sur adjudication. No. 105 October Term, 1914. O. C. Allegheny County. F. P. Patterson and Thos. M. Benner, for claimant. MILLER, J., November 28, 1914.-The principal questions for consideration are (a) whether the fees fixed to be paid a referee in litigation in which decedent's estate was a party are preferred and from what source they must be paid; (b) whether counsel fees in connection therewith are preferred in whole or in part, and from what source payment must be made; (c) whether certain claims have been duly proven and what their status is; (d) whether any claims, if preferred, precede the rights of judgment lien creditors; and (e) whether partnership creditors can participate in the distribution out of the individual estate of one of the partners in connection with or against his individual creditors? Decedent died August 6th, 1911, testate; the executrix named in his will resigned and was succeeded by the Safe Deposit & Trust Company, administrator d. b. n. c. t. a. His estate is insolvent. Claims are presented for which preference is urged aggregating about $7,500.00; other claims are presented aggregating about $8,000.00; a claim for preference is made under decree of this Court to the McNulty estate aggregating about $20,000.00. The list of liens shows judgments against the defendant individually aggregating about $290,000.00, also shows judgments on partnership debts under the name of R. M. Gulick & Company, aggregating $10,000.00. The balance for distribution consists of the net proceeds of sale of Beaver County real estate, $1,067.80; net proceeds of sale of Allegheny County real estate, $2,194.57, and proceeds of the sale of personal property, $3,055.61; to these amounts will be added a small balance of interest on funds in accountant's hands; the lists of liens show judgments obtained in the life time of the decedent, also judgments obtained after his death; the only judgments shown in the list of liens on the Beaver County real estate is one entered against the decedent as a partner of R. M. Gulick & Company. (a) The decedent in his life time filed three bills in equity against the Colonial Trust Company, administrator d. b. n. c. t. a. of the estate of Peter J. McNulty, deceased, with whom the decedent was associated in business, Gulick's Estate. partly in business as R. M. Gulick & Company and partly in the joint ownership of real estate; by agreement of counsel a referee was appointed by the Common Pleas Court to take testimony and make a report thereon; these hearings before the referee were many, long continued, and involved a vast amount of investigation. The referee found against the plaintiff. The Court of Common Pleas approved the findings of the referee and fixed his fees, apportioning the same between the Gulick estate and the McNulty estate, the former to pay $1,050.00, the latter to pay $1,450.00. These proceedings in the Common Pleas Court, brought by Mr. Gulick in his life time, were under the advice and direction of John S. Ferguson, Esq., now deceased, one of the leading and reputable counsel at this bar; after Gulick's death his administrator, the present accountant, properly and promptly continued in prosecuting the suits to final decree in said Court. Under the foregoing facts the charge fixed by the Court of Common Pleas upon the Gulick estate must be considered as an expense of administration, and, therefore, has a preference. The good faith of Gulick's administrator is not questioned, and under the instituted proceedings as it found them it was its duty to continue; the expenses and costs of litigation including counsel fees are a proper charge, Ammon's Appeal, 31 Pa. 311, even though the estate was insolvent, Mummas' Appeal, 127 Pa., 475; the decree of the Common Pleas Court fixing the referee's fees was effective as a general judgment for which the estate was liable as an expense of administration, Merkel's Estate, 131 Pa., 584; accordingly the claim of the referee is sustained. (b) Some of the statements of fact with reference to the foregoing adjudication apply to the claim presented by the administratrix of the estate of Mr. Ferguson; the record shows that he was counsel, prepared and filed the bills in equity for his then client, Mr. Gulick. The testimony indicates that much time and labor had been expended by him in preparation for the filing of these bills, and preparing for trial during the life time of Mr. Gulick. The Auditing Judge takes notice of the fact that in the adjudication of the McNulty estates before him the necessity for a settlement of the partnership and other differences between the Gulick and McNulty interests was manifest and that it could only be determined by proceedings in equity. The present accountant properly continued Mr. Ferguson as counsel in pushing the trials in the equity cases to a conclusion. The objection to the claim, as presented, is based on an interview between Mr. Gulick's former executrix and her counsel on the one side and Mr. Ferguson on the other; the substance of this interview is that in discussing the executrix's duty to proceed with the equity litigation and the probable consequences thereof, Mr. Ferguson was "willing to look to the results of the litigation for his compensation." The evidence controverting the inference to be drawn from this admission is that Mr. Ferguson in his life time asked for payment on account of his services from the present accountant pending and after the litigation had terminated, denied that he had ever agreed to proceed with these cases for a "contingent fee," and declined to proceed with appeals in the cases. after decision by, the Common Pleas Court by reason of the stand taken by the widow and administrator c. t. a. This evidence is contained in the testimony of the accountant's trust officer, and in Mr. Ferguson's letters. It can readily be seen that the testimony given by the former executrix and her counsel may be entirely correct, and that also the statements made by Mr. Ferguson to the accountant and in his letters may be equally correct and true; the inference to be drawn from the several statements of evidence involves no contradiction. Conceding that Mr. Ferguson said that he would look to the results of the litigation for his compensation it must be observed that this statement neither admits that he was working for a contingent fee |